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Gram Panchayat, Barmer v/s Firm Marudhar Stone Industries, Barmer & Others

    Civil Misc. Appeal No. 429 of 1998

    Decided On, 10 March 2000

    At, High Court of Rajasthan


    For the Appellant: G.R. Punia, Advocate. For the Respondent: H.R. Panwar, Advocate.

Judgment Text

1. Heard the learned counsels for the parties.

2. The learned counsel for both the parties agreed that S.B. Civil Misc. Appeal No. 429/98 Gram Panchayat v. M/s. Marudhar Stones Industries and others may be finally disposed of at this stage.

3. The short question arising in this appeal for decision is whether a party who has been impleaded as a defendant after the passing of an order under Order 39, Rules 1 and 2 , C.P.C., has a le

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gal right to be heard regarding issue of injunction order under Order 39, C.P.C. In the instant case, it appears that an order was passed by the learned lower Court under Order 39, Rules 1 and 2 on 2-9-1996. On that day, the present appellant, the Gram Panchayat, Barmer was not a party in the suit. The appellant was impleaded as the defendant by order dated 16-10-1997. Thereafter, an application was moved on behalf of the appellant under Order 39, Rule 4, C.P.C. to set aside the earlier injunction order passed by the trial Court. After hearing the parties, the learned trial Court rejected the application filed by the appellant under Order 39, Rule 4, C.P.C. by order dated 18-2-1998. A perusal of the impugned order shows that the main reason for rejecting the application by the present appellant was that the lower Court was of the opinion that the earlier order passed by it had become final and it could not be disturbed.

4. In Smt. Draupadi v. Narayan, (1994) 2 Raj LW 482, a similar question was decided by a learned single Judge of this Court. In that case, in the suit filed against the UIT, Narain obtained order of status quo regarding possession and later on filed application that UIT had disobeyed that order and secured another order under Section 1 51 of the Code of Civil Procedure to get the restoration of possession of the land from the UIT. When Smt. Draupadi came to know that pursuant to the aforesaid order, possession of the site dispute is to be restored to Narayan, she filed two applications, one to become party to the suit and another under Order 39, Rule 4, C.P.C. for vacation of the injunction order which was passed by the Court below against the UIT. In the applications, Smt. Draupadi had stated about the concealment of material facts, misstatement of facts by Narayan and, particularly stated that filing of suit for pre-emption by Narayan against Smt. Draupadi was material for deciding the interim and final dispute between the parties. The trial Court impleaded Smt. Draupadi as a party to the suit but the application under Order 39, Rule 4, C.P.C. was dismissed by observing that the matter had already been considered in detail on two earlier occasions vide orders dated 6-1-1984 and 9-1-984. On perusal of the order passed by the trial Court, this Court came to the conclusion that the trial Court did not consider the matter afresh after Smt. Draupadi had brought more facts on record and after she had become party to the suit. A revision petition was filed before this Court against the order passed by the trial Court rejecting the application filed under Order 39, Rule 4, C.P.C. The revision petition was allowed by this Court and the matter was remitted to the trial Court to decide afresh both for interim and final purposes in the presence of the plaintiff and Smt. Draupadi without being influenced by orders dated 6-1-1984 and 9-1-1984.

5. In my considered view, in a case like the presenr one a party cannot be bound by any order passed in his back and without notice to it. The Gram Panchayat, Barmer is, therefore, not bound by the injunction order passed by the trial Court, before the Gram Panchayat, Barmer was impleaded as defendant. The earlier injunction orders passed by the trial Court before impleading the Gram Panchayat, Barmer as a defendant, were not orders in rem. In these circumstances, it is proper to hold that after being impleaded as a defendant, the Gram Panchyat, Barmer has a legal right to approach the trial Court to consider afresh the question of granting injunction affecting its rights.

6. Consequently, this appeal is allowed. The impugned order dated 18-2-1998 passed by the learned Addl. District and Sessions Judge, Barmer in Civil Misc. Case No. 34/96 is hereby quashed and set aside and he is directed to consider afresh the application filed by the appellant under Order 39, Rule 4 , C. P.C. Needless to say that the parties to the case shall have right to be heard and they may raise such objection as may be available to them in accordance with law. Record, of the lower Court be returned.

Appeal Allowed.